K. D. Ambrose and K. D. Bernard v. K. D. Joseph, Vijaya Lakshmi, Dr. Smitha, and Gireesh

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 19TH DAY OF JUNE 2018 / 29TH JYAISHTA, 1940 RCRev..No. 184 of 2018 (B) AGAINST THE ORDER IN RCA 79/2015 of ADDL. DISTRICT COURT - VIII AND RENT CONTROL APPELLATE AUTHORITY, ERNAKULAM, DATED 03-08-2017 AGAINST THE ORDER IN RCP 49/2014 of III ADDL.M.C.EKM (RENT CONTROL) DATED 31-08-2015 REVISION PETITIONERS /APPELLANTS/RESPONDENTS 1 & 3 : - ------------------------------------------------------------------------------------------ 1 K.D.AMBROSE, S/O.LATE K. J. DEVASY, AGED 48 YEARS, M/S. SUPER MOTORS, DOOR NO. 42/2323, ST. BENEDICT ROAD, ERNAKULAM, KOCHI-18. - 2 K.D BERNARD, S/O. LATE K.J DEVASY, AGED 43 YEARS, M/S. SUPER MOTORS, DOOR NO. 42/2323, ST. BENEDICT ROAD, ERNAKULAM, KOCHI-18. BY ADVS.SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN RESPONDENTS /2[nd] RESPONDENT/2[nd] RESPONDENT:- ------------------------------------------------------------------------- 1. K.D.JOSEPH, S/O. LATE K.J DEVASY, AGED 45 YEARS, M/S. SUPER MOTORS, DOOR NO. 42/2323, ST. BENEDICT ROAD, ERNAKULAM, KOCHI-18. RESPONDENTS/ADDL. RESPONDENTS 3 TO 5/ LEGAL REPRESENTATIVES OF DECEASED PETITIONER:- ----------------------------------------------------------------------------------------------------------------------------- 2. VIJAYALAKSHMI, W/O.LATE K.G SMITH, RAJLOKH, ST. BENEDICT ROAD, ERNAKULAM, KOCHI-18. 3. DR. SMITHA, D/O. LATE K.G SMITH, RAJLOKH, ST. BENEDICT ROAD, ERNAKULAM, KOCHI-18. RCRev..No. 184 of 2018 (B) 2 4. GIREESH, S/O. LATE K.G SMITH, RAJLOKH, ST. BENEDICT ROAD, ERNAKULAM, KOCHI-18. R2-R4 BY ADV. SRI.R.LAKSHMI NARAYAN R2-R4 BY ADV. SMT.R.RANJINI R2-R4 BY ADV. SRI.M.ASHOK KINI THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 19-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** -----------------------------------------------R.C.R. No.184 of 2018 -----------------------------------------------Dated this the 19[th] day of June, 2018 ## O R D E R ## **P. Somarajan, J.** Aggrieved by the concurrent findings rendered by the Rent Control Court in R.C.P.No.49/2014, dated 31.08.2015, and the Rent Control Appellate Authority in R.C.A.No.79/2015, dated 03.08.2017, under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (for short 'the Act'), the tenants came up with this revision mainly on the application of first proviso to Section 11(3) of the Act. The question mooted is that whether the building or the landed property, if any, owned by the wife of the landlord would intake within the purview of first proviso to Section 11(3) of the Act and whether it can be considered to test the _bonafides_ raised by the landlord under Section 11(3) of the Act. 2. The concurrent finding rendered by both the Rent Control Court and the Appellate Authority on the point was disputed mainly on the reason that the need projected in the petition is not for doing a separate business by the landlord/husband, but for conducting a joint business in the R.C.R. No. 184 of 2018 2 name of landlord/husband along with his wife and that the wife is having some property on the opposite side of the petition schedule building having road frontage wherein the landlord was doing a business of printing press, but subsequently it was closed. 3. On going through the first proviso to Section 11(3) of the Act, it is now settled that it would form part of _bonafides_ to be tested being an integral part of the need advanced and even it can be used for testing the very nature of the _bonafides_ of the need advanced. But, the expression used in first proviso to Section 11(3) of the Act is 'landlord' would not take in within its purview any person other than the landlord. The exhaustive definition given to the word 'landlord' as per the Act is not available to interpret the word 'landlord' used in first proviso to Section 11(3) of the Act. This Court had the occasion to consider the said question in **Narayanan v. Khadeeja [2017 (3) KLT 784]** (in which one of us is a member) and settled the legal position as under: _“In other words, an agent, trustee, executor, administrator or receiver cannot be substituted in the_ R.C.R. No. 184 of 2018 3 _place of landlord as envisaged under Ss.11(3), 11(4) (iv), 11(5) and 11(8) of the Act. They cannot step into the shoes of landlord for the purpose of Ss.11(3), 11(4)(iv), 11(5) and 11(8) of the Act under the guise of exhaustive meaning given to the expression “landlord” under S.2(3) of the Act. The expression embodied under S.2(3) of the Act “unless the context otherwise requires” has to be understood so as to promote the legislative intention and in consonance with S.11 of the Act. At the same time, an authorized agent, who is empowered or entitled to receive rent, can initiate eviction proceedings under S.11(2)(b) of the Act, as there is no involvement of any personal requirement, necessity or need of landlord under that section. In short, the exhaustive definition given to the word “landlord” cannot be availed off for all purposes under the Act. It has only a limited application and it will not have any application to Ss.11(3), 11(4)(iv), 11(5) and 11(8) of the Act which are dealing with the personal requirement of the landlord or a dependant of the landlord.”_ 4. The need advanced by the landlord, though for a joint business along with his wife, cannot be said to be for the exclusive user or exclusive benefit of the wife. So, in fact, the need advanced is one for the landlord and what was expressed by the landlord is to carry on business with the help of his R.C.R. No. 184 of 2018 4 wife. As far as the property of wife is concerned, it is up to her to decide in what manner that property has to be used in accordance with her whims and fancies and the landlord, though he may be the husband, cannot dictate. Of course, when a need is advanced for a dependent, whether the dependent is having any other property or building sufficient for his/her alleged need, it is a factor to be considered while testing the _bonafides_ of the need advanced by the landlord, but cannot be brought under the purview of first proviso to Section 11(3) of the Act, which is exclusively dealing with the building which is available with the landlord. The learned counsel for the revision petitioners relied on the decision rendered in **Raghavan v. Govindan Nambiar [1995 (1) KLT 596].** It may not have much application in the present case because what is dealt with under the above said decision is only with respect to the application of first proviso to Section 11(3) of the Act when the tenant establishes that the landlord is having another building of his own lying vacant. The present case stands on a different footing as the building R.C.R. No. 184 of 2018 5 or land, if any, available with the wife of the landlord cannot be brought under the purview of first proviso to Section 11(3) of the Act. It is also submitted by the learned counsel for the respondents that the first respondent in the Lower Court, who is the tenant therein, while giving oral evidence had admitted that the two shop rooms wherein the printing press was conducted were subsequently demolished and that at present those shop rooms are not available. Further, another reason was also advanced by the learned counsel for the respondents stating that the landlord has some open space/landed property just on the backside of the petition schedule shop room and the same can be used for parking vehicles in connection with their proposed business. Hence, we are of the view that no sufficient ground was brought to our notice in order to have an interference with the concurrent findings rendered by both the Rent Control Court as well as the Rent Control Appellate Authority. Hence, the revision fails, deserves only dismissal and we do so. R.C.R. No. 184 of 2018 6 5. Having regard to the facts and circumstances involved in the case and the submission made by the learned counsel for the petitioners, a period up to 31.12.2018 is hereby granted to vacate the premises subject to the condition that the petitioners shall submit an affidavit before the Rent Control Court within two weeks from today unconditionally undertaking that they shall surrender vacant possession of the tenanted premises on or before 31.12.2018 and that they will pay the rent regularly without any default. R.C.R. is dismissed accordingly. Sd/- **A.M.SHAFFIQUE (JUDGE)** Sd/- **P. SOMARAJAN (JUDGE)** DMR/-